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Cross v. State

Court of Appeals of Texas, Eleventh District
Jul 18, 2024
No. 11-23-00102-CR (Tex. App. Jul. 18, 2024)

Opinion

11-23-00102-CR

07-18-2024

ARTHUR GILMER CROSS JR., Appellant v. THE STATE OF TEXAS, Appellee


Do not publish. See Tex. R. App. P. 47.2(b).

On Appeal from the 29th District Court Palo Pinto County, Texas Trial Court Cause No. 17958

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

ORDER

W. STACY TROTTER JUSTICE

Following a plea of not guilty, Appellant, Arthur Gilmer Cross Jr., was convicted by a jury of delivery of methamphetamine in an amount of four grams or more but less than two-hundred grams, a first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.112(a), (d) (West Supp. 2023). Appellant pled "true" to the enhancements alleged by the State, and the jury assessed his punishment at imprisonment for life in the Correctional Institutions Division of the Texas Department of Criminal Justice. The trial court sentenced Appellant accordingly. We abate this appeal and remand this cause to the trial court.

Appellant's court-appointed counsel has filed a motion to withdraw in this court, supported by an Anders brief in which counsel asserts that no meritorious or arguable grounds for appeal exist. Anders v. California, 386 U.S. 738 (1967). Counsel provided Appellant with a copy of the Anders brief, a copy of the motion to withdraw, and an explanatory letter. It is unclear whether counsel provided Appellant with a copy of the clerk's record and reporter's record, or simply sent him a blank motion to obtain copies himself. Counsel also advised Appellant of his right to review the record and file a response to counsel's brief, and of his right to file a petition for discretionary review. See TEX. R. APP. P. 68.

Appellant filed a pro se response to counsel's Anders brief. In addressing an Anders brief and a pro se response, an appellate court may only determine whether: (1) the appeal is wholly frivolous and, if so, issue an opinion explaining that it has independently reviewed the record and finds no reversible error; or (2) arguable grounds for appeal exist and, if so, remand the cause to the trial court to appoint new appellate counsel to brief the issues. In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008); Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Appellate counsel appointed to represent an indigent client must only file an Anders brief "to avoid burdening the courts with wholly frivolous appeals." Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014). "The purpose of the Anders brief is to satisfy the appellate court that the appointed counsel's motion to withdraw is, indeed, based upon a conscientious and thorough review of the law and facts." Id. Counsel's Anders brief must be an "exceptionally detailed" roadmap explaining "why, at each turn, there are only frivolous issues to be raised on appeal." Limauro v. State, 675 S.W.3d 368, 372 (Tex. App.-Dallas 2023, no pet.). A motion and brief "setting out nothing more than a 'bare conclusion[]' is not enough to assure the appellate courts that the attorney has made a thorough review of the record and the applicable law, but has nonetheless concluded that there is no plausible basis for appeal." Schulman, 252 S.W.3d at 407 (citing Anders, 386 U.S. at 742-44).

After conducting an independent review of the record in this case, we conclude that court-appointed counsel has not met her obligations under Anders. To counsel's credit, it is clear based on her recitation of the facts that she thoroughly reviewed the record. However, counsel only identifies three potential appellate issues that originate from Appellant's three-day jury trial: (1) Appellant's assertion of his right to self-representation; (2) the sufficiency of the evidence to support Appellant's conviction; and (3) whether the life sentence imposed was within the statutory range of punishment. The analysis portions of each point provide only short, conclusory statements that do not explain why raising each issue would be frivolous under the facts of this case and the applicable law.

We understand that Anders briefs, especially in cases that were tried to a jury, are "an exhaustive endeavor." Limauro, 675 S.W.3d at 372. They must detail each portion of the trial and provide a legal basis for why every possible appellate avenue is not frivolous. See, e.g., Davis v. State, 683 S.W.3d 828, 829-30 (Tex. App.- Amarillo 2023, no pet.) ("Utilizing Anders in [jury-trial cases] should be rare, given the plethora of actual issues normally involved."); Limauro, 675 S.W.3d at 372 ("filing Anders briefs following jury trials should almost never occur"). We do not hastily reject Anders briefs, even those following jury trials. In Appellant's case, however, while we appreciate counsel's thorough review of the record, the brief itself falls short.

Following the procedures outlined in Anders and Schulman and our independent review of the record, we disagree with counsel's conclusion that this appeal is frivolous. Because we believe that arguable grounds for appeal exist, we grant counsel's motion to withdraw, abate this appeal, and remand this cause to the trial court with instructions to appoint new counsel to represent Appellant on appeal. The trial court shall state in its appointment order the name, address, telephone number, and state bar number of new counsel. The order shall be included in a supplemental clerk's record, which shall be filed with the clerk of this court on or before August 1, 2024. New appellate counsel is directed to address the issues identified by this court and to raise any other substantive issues that counsel deems to be arguable. Appellant's brief is due to be filed in this court within thirty days from the date of the trial court's appointment of new counsel.

This appeal will be reinstated upon the filing of the supplemental clerk's record with this court. All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure.

Accordingly, counsel's motion to withdraw is granted, this appeal is abated, and this cause is remanded to the trial court for further proceedings consistent with this order.


Summaries of

Cross v. State

Court of Appeals of Texas, Eleventh District
Jul 18, 2024
No. 11-23-00102-CR (Tex. App. Jul. 18, 2024)
Case details for

Cross v. State

Case Details

Full title:ARTHUR GILMER CROSS JR., Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Eleventh District

Date published: Jul 18, 2024

Citations

No. 11-23-00102-CR (Tex. App. Jul. 18, 2024)